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One of the review plea states that the majority Judgment erroneously likens the instant case to a petition for “the construction of a road” to enforce the right to travel, or creation of “a platform” for a “poet who wishes to share their work” when in fact, here, the Respondents have constructed the metaphoric road and poetry platform—only that homosexuals are barred from both because the Respondents think homosexuals are inherently a problem
A plea was made today before the Chief Justice of India to allow open court hearing of the review petitions filed in the Supreme Court challenging its judgment refusing to provide legal recognition to same sex marriages.
The CJI led bench of five judges is to hear the review petitions tomorrow in their chambers.
In November last year, a review petition was filed before the Supreme Court against its landmark verdict which had held that no fundamental right to marry can be found under the Indian Constitution.
Another review petition filed before the top court states that the impugned verdict suffers from errors apparent on the face of the record and is self-contradictory and manifestly unjust.
Filed under Article 137, the plea states that the Majority Judgment of Justices S Ravindra Bhat, PS Narasimha and Hima Kohli is facially erroneous because it finds that the Respondents are violating the Petitioners’ fundamental rights through discrimination, and yet fails to enjoin the discrimination.
It has been further submitted that the Majority Judgment is self-contradictory in its understanding of “marriage”.
A five judge Constitution bench led by Chief Justice of India had left it on the Union to constitute an High Powered Committee headed by the Cabinet Secretary for this purpose to look into the aspects of queer relationships.
Court had further remarked that in the exercise of the power of judicial review, it must be careful not to tread into the legislative domain. "The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain", it held.
The Constitution bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli had begun hearing the same-sex marriage petitions on April 18 last year.
Notably, the bench has recognized transgender marriages to be recognized under the laws prevailing in the country. On the aspect of Special Marriage Act and the challenge to its provisions, it has been held that they cannot be held to be unconstitutional and the court cannot read words into its provisions as well.
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